This action is fundamentally a dispute between two stockholder-directors over the capital structure of their corporation. One contends, based on current stock ownership, that a custodian is necessary to break a director deadlock; the other seeks specific performance of a purported agreement that would effect their intended stock ownership and thus resolve any alleged deadlock. Petitioner
Kevin Millien (“Millien”) filed this action pursuant to 8
§ 226 against Respondent
George Popescu (“Popescu”) requesting the Court to appoint a custodian to resolve the parties’ deadlock as the
only two directors of Boston Technologies,
In response, Popescu filed four counterclaims against Millien: (i) breach of contract; (ii) breach of the implied covenant of good faith and fair dealing; (iii) reformation; and (iv) fraud in the inducement.
This post-trial memorandum opin
ion presents the Court’s findings of fact
and conclusions of law.
For the reasons set forth below, the Court concludes that Popescu is entitled to judgment in his favor for his breach of contract claim and that Millien is not entitled to the appointment of a custodian for BT.
Joint Pretrial Order (“Pre
§ IV.A; Am. Verified Pet. for the Appointment of a Custodian Pursuant to 8
Pre-Trial Order §
IV.B; Resp’t’s Answer and Am. Verified Countercl.
The parties relied on their pre-trial briefs instead of submitting post-trial briefs. The Court heard closing arguments at the conclusion of the trial in lieu of a separate, post-trial oral argument.